Step 1 Divide the parties and the injuries' Who is going to sue whom, and for what injuries

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Step 1) Divide the parties and the injuries.
Who is going to sue whom, and for what injuries?
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Step 1 Identify the parties and the injuries.
Who is going to sue whom, and for what
injuries? Pedestrian v. Driver 1 Pedestrian v.
Driver 2 Pedestrian v. Power Company Pedestrian
v. City
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• Step 2 What legal theories are available as
  against each party?
• Negligence?
• Strict Liability?
• Intentional Tort?

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• Step 3 Looking at the negligence cause of
  action, look for the triggers facts that
  suggest particular issues
• For example
• Are there facts that suggest an untaken
  precaution?

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Step 3 Looking at the negligence cause of
action, look for the triggers facts that
suggest particular issues For example The duty
triggers -- is the untaken precaution a
failure to warn (act or omission)? -- does it
amount to an obligation to protect from third
parties? -- is the defendant a person who has
only limited duties a landowner, a utility, a
governmental entity? -- is the plaintiff the
person to whom the duty is owed? -- is the danger
inherent in the activity or obvious?
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Step 4 Walk through your outline / flow chart /
check list looking for issues you have missed.
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The check list Start with the untaken
precaution, because that frames the rest of the
analysis.
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• The check list Duty
• I. If the defendant acted in a way that created a
  risk of harm
• Was it a risk of harm to this plaintiff? Or is
  this a Palsgraf situation?
• Is the plaintiff an indirect victim of a duty
  primarily owed to someone else? (Randi W.,
  Strauss)
• Is the duty limited because of who the plaintiff
  is? (landowners entrants)
• Is the duty limited because of who the defendant
  is? (Strauss, Riss)
• Is it an inherent or obvious danger, as to which
  there may be no duty (or, in California, primary
  a/r)?

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• The check list Duty
• II. If the defendant simply failed to act when an
  act could have prevented the harm?
• Is there a special relationship, or an
  undertaking?
• Is the plaintiff within the class of people to
  whom the duty was owed?
• Tarasoff known victim
• the Strauss / contract cases limited group,
  known to rely
• Is it a duty to prevent crime?

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The check list Duty III. Is the duty limited
because of the kind of harm that occurred the
case of emotional distress. 1) Is the plaintiff
a direct victim? a) because she was within
the zone of physical danger? b) because the
defendants negligence was directed at her? 2)
Was the plaintiff upset at harm that happened to
another? a) was the plaintiff also within the
zone of danger? b) does the plaintiff meet the
Portee criteria?
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• The check list Duty
• IV. The role of policy in the analysis
• when there is no case law closely on point, or
  when the cases could be argued either way, or
  when you just dont like the answer that the
  cases give you, argue that there should or
  shouldnt be a duty.
• the Rowland factors are an attempt to tell you
  what counts as a good argument for whether there
  should or shouldnt be a duty.

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A Digression What Im looking for when I grade
an exam
1) a clear statement of the precise issue the
facts raise 2) a clear statement of what the
governing rule is, or an explanation of why there
might be some uncertainty as to what the
governing rule is 3) an analysis of the
specific facts that will determine how the rule
applies, or, if the rule is uncertain, an
analysis of the controlling authorities and
competing policies that will lead the court to
frame a new rule and 4) an understanding of how
the resolution of the particular issue will
affect the ultimate question posed by the
hypothetical.
SO, MAKE SURE YOU KNOW THE RULES!
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A defendant who contracts to perform maintenance
functions is liable if the non-contracting party
is a member of a limited class of people whose
reliance and injury are direct and demonstrable.
(p.181, n. 7) OR There is a duty when there is
an isolated transaction and the parties to the
agreement contemplate the protection of
identified individuals. (p. 178)